Prosecuting false accusers will only make things worse

The Senate voted 50-48 last Saturday to confirm Brett Kavanaugh to the Supreme Court. This followed a contentious political fight over allegations by three women that Kavanaugh had committed acts of sexual assault in high school and college.

Two days later at Kavanaugh’s swearing-in, President Donald Trump proclaimed him “proven innocent” of sexual assault. In the vote’s aftermath, conservative commentators have called for criminal investigation and prosecution of Kavanaugh’s accusers for allegedly lying under oath. They’ve also called for more aggressive prosecution of false accusers in general, who sometimes face no consequences for making false reports.

This raises several important questions:

How common are false reports of rape and sexual assault?
Should false accusers be prosecuted?
How often do false accusers get prosecuted?
And finally, could Kavanaugh’s accusers be successfully prosecuted?

Careful examination of these issues strongly suggests that while false allegations are a real problem, prosecuting false accusers isn’t the answer—at least not without overhauling the criminal justice system (and perhaps also human nature) first.

How common are false reports of rape and sexual assault?

According to the most credible studies, between 2 and 10 percent of rape reports are provably or probably false. Since these studies counted only reports in which there is evidence of falsity, and inevitably some false accusers will leave no evidence, the actual rate of false reporting may be on the high end of that range. However, as one review of the literature concluded, “there is no robust evidence pointing beyond the high-end estimates of 8-10%.”

False allegations of domestic violence, sexual assault, and sexual harassment have been the subject of fewer studies than false allegations of rape. False reporting may be somewhat more common in those categories due to the complex politics of marriage and of shared living and work spaces. (The gentlest, most non-violent, most compliant man I know was falsely accused of domestic violence during a custody battle. When he asked his ex-wife why she had made the allegations, she admitted she had been advised by her lawyer that this was a winning strategy, and that my friend would never see the affidavit and would never know what she had said.)

Should false accusers be prosecuted?

False allegations are far from victimless crimes. With a few high-profile exceptions, false allegations usually do not lead to wrongful conviction of the accused. However, they may lead to other serious consequences, such as pre-trial detention, loss of employment, intervention by social services, or death threats and other social stigma. False allegations often have a racial dimension and may disproportionately target black people. Worse still, false accusers collectively victimize all genuine victims of sexual assault by eroding their credibility.

False allegations are a version of the free-rider problem. “Free riders” are people who take advantage of a benefit they aren’t entitled to. An able person who parks in handicap spaces or collects disability is a free rider. So is an emotionally well person who gets a marijuana prescription, registers a pet as an emotional support animal, or claims to “triggered” by college lectures. In doing so, free riders drain public trust and resources away from people who really need them, and they undermine the credibility of the benefit and of the institutions that provide it. In effect, they steal from the vulnerable people these benefits are intended for.

In theory, prosecution of false accusers should be good for women as well as men, because it should reduce the number of free riders and correspondingly increase the credibility of genuine victims of assault. If accusers have real skin in the game and can face real consequences for lying, the public should be able to trust accusers more implicitly and with less fear that they are taking advantage of that trust.

In practice, however, the systematic prosecution of false accusers could have a chilling effect on reporting of an already under-reported category of crime. Threats of prosecution could easily be abused to silence real victims or to intimidate accusers into retracting their claims.

The brokenness of the system is the fundamental barrier to making effective use of prosecution in these cases. Money, power, and influence dramatically affect legal outcomes, making it difficult for victims to trust that they will be treated fairly. Furthermore, the authorities responsible for prosecuting perjury appear all too willing to commit the crime themselves. Police perjury, or “testilying,” is so routine that one former police chief estimated that “hundreds of thousands of law-enforcement officers commit felony perjury every year testifying about drug arrests” alone.

In recent years perjury has become, if anything, more acceptable for powerful men than ever before. Judge Kavanaugh himself appears to have rather baldly lied under oath about aspects of his personal history, including how much he drank in college and the meaning of sexual euphemisms that appear in his yearbooks. Congress condoned this behavior by appointing him to the nation’s highest court.

Like false accusers, police and judges who lie under oath are free riders. In the same way that false accusers victimize genuine rape victims, dishonest officials victimize honest officials by undermining public trust in police and judicial institutions. The same logic that supports prosecution of false rape accusers also supports aggressive prosecution of police officers and judges who commit perjury. In fact, to prosecute false accusers without first cleaning house in the criminal justice system would be to put the cart before the horse.

Two other considerations also militate against prosecuting false accusers.

First, police lack resources to investigate misdemeanor crimes. When police can rarely be bothered to solve cases of everyday burglary or fraud, it’s hard to argue that they should spend their investigative hours trying to prove that women have made false claims of sexual assault.

Second, one factor to consider in prosecuting false accusers is how it may impact the accuser him- or herself. False accusers are often particularly vulnerable people, and they may not intend to cause harm. They tend to be young, financially unstable, suffering from addiction or mental illness, and under pressure from third parties. In nearly half of all false rape complaints, a young woman lies to her parents to explain a missed curfew or unwanted pregnancy, and it is the parents who file a criminal complaint. In other cases, the accuser sincerely believes his or her own allegations due to delusion, intoxication, or memory error. In such cases, prosecution may aggravate existing mental health problems or lead to self-harm.

How often do false accusers get prosecuted?

I am not aware of any available statistics on prosecution of false accusers in the United States. Anecdotally it seems to be rare, but it may be growing more common over time.

Lawyers Susan Stone and Kristina Supler, who deal with Title IX complaints on college campuses, recently opined that in 2018 they have observed a “tipping point” toward prosecuting false accusers in the United States. Stone and Supler cite the example of a Connecticut woman who falsely accused two football players of raping her at an off-campus party. In August she received a one-year prison sentence after pleading guilty to making a false report and interfering with police. She now admits the encounter was consensual and that she accused the players in order to save face.

Another woman who falsely accused a Texas DPS officer of rape escaped without charges earlier this year only because she made her complaint to her jailers rather than to sworn peace officers. Only sworn peace officers can take a complaint, so she cannot be charged with filing a false report.

Even when prosecutors decline to press charges, false accusers don’t necessarily escape without consequences. Instead they may face civil suits and have to pay damages. In one of the more famous false allegation cases, 15-year-old Wanetta Gibson falsely accused USC football player Brian Banks of kidnap and rape in 2002. He served five years in prison and had to register as a sex offender, and the Long Beach Unified School District paid a $750,000 settlement to Gibson’s family. In 2011 Gibson admitted she had lied. Banks’s conviction was overturned, and Gibson was ordered to pay the school district $2.6 million in damages. Banks went on to play in the NFL.

In contrast to the United States, government policy in the United Kingdom encourages authorities to prosecute at least some false accusers. The Crown Prosecution Service (CPS) publishes specific guidelines on who and when to prosecute. A 2014 investigation found that 109 women had been prosecuted in the last five years for making false rape reports. A 2018 study found 200 such women in the last decade. This of course represents only a tiny fraction of all rape accusers who came forward during that period, but it shows a significant symbolic effort and a substantial investment of public resources on the part of the UK government.

The UK example should serve as an important cautionary tale. Most of the women prosecuted are charged with “perverting the course of justice,” which carries a seemingly excessive maximum sentence of life in prison. Moreover, a recent investigation by BuzzFeed News revealed that UK prosecutors have failed to follow CPS guidelines intended to prevent prosecution of vulnerable women and of those without malicious motives. According to the BuzzFeed report,

  • “Prosecutors went after teenagers, and women who reportedly had mental health issues, had experienced past physical and sexual assault, or were grappling with drug and alcohol addiction.
  • “Women were prosecuted even when they reportedly went to police only under pressure, quickly recanted, or never named their attacker at all.
  • “The CPS has prosecuted women who police were not sure had lied. In one instance detectives declined to charge the woman for making a false complaint. Prosecutors went ahead anyway.”

In one egregious case, prosecutors charged Eleanor de Freitas, a 23-year-old girl with bipolar disorder and a known risk of self-harm, even though “Her own report to the police acknowledged she was unsure whether she consented to sex.” Eleanor hanged herself three days before her trial.

It’s also possible that prosecution of false accusers has had a chilling effect on truthful reports of rape. Survey data suggest that victims of sexual assault in the UK may be only half as likely to make a police report as victims in the United States. A 2013 study by the UK’s Ministry of Justice found an astonishingly low 15% reporting rate for rape and sexual assault. A 2017 report by the London Office for Policing and Crime estimated the reporting rate at between 5 and 25%. By contrast, US reporting rates are typically judged to be about one in three, or 33%. Of course, these numbers must be interpreted with caution, because definitions and methodologies may differ between studies.

If the United States is indeed tilting toward the UK model, voters should be leery of this development. If prosecuting false accusers is to be the new norm, it must be matched by systemic reforms to ensure that men, especially police and judges, are held to an equally rigorous standard. If the new rigor is selectively applied just to women or just to claimed victims of sexual assault, then it’s just another form of victimization.

Could Kavanaugh’s accusers be successfully prosecuted?

With regard to the specific women who accused Brett Kavanaugh, prosecutors are unlikely to be able to make any charges stick. Investigations by the FBI and media turned up a very mixed bag of evidence regarding the accusers’ credibility.

Christine Blasey Ford, who says that in high school Kavanaugh pinned her down and began to forcibly take her clothes off, boasts impressive credentials as a psychology professor and Stanford University researcher. A therapist’s notes confirm that she discussed the alleged assault as early as 2012, and is not merely fabricating it now for political purposes.

Conservatives tout small inconsistencies in Ford’s testimony as evidence that her memory is unreliable, though it’s hardly reasonable to expect perfect recall of details from a 30-year-old incident. More troubling is her alleged relationship to the polygraph test. Ford passed a polygraph to prove her bona fides, and under oath she denied ever having coached anyone how to pass the test. Following her testimony, an anonymous ex-boyfriend came forward to claim that she had lied about that, and that he had watched Ford coach her friend Monica McLean for a polygraph test required to join the FBI. McLean denies the ex-boyfriend’s claim.

By far the most credible of the three accusers is Debbie Ramirez, a quiet woman who shuns attention and communicates through her lawyers. Ramirez hesitated to speak out, because she didn’t entirely trust her memory that Kavanaugh had exposed himself to her at a college party. However, her memory is corroborated by two former classmates, Kenneth Appold and Michael Wetstone, who heard about the incident from an eyewitness the day after the party. So Ramirez’s allegation is likely true, though somewhat tamer than the stories told by the other two women.

Far less credible is the testimony of Julie Swetnick, who says that in college Kavanaugh was an “aggressive” drunk, and that he and his friend Mark Judge used to spike the punch at parties to make girls more pliable. According to Swetnick, she witnessed “trains” of frat brothers lined up to have sex with drunk girls.

Like Ford, Swetnick boasts impressive credentials, including security clearance from multiple government agencies. Swetnick’s assessment of Kavanaugh as an “aggressive” drunk is corroborated by Kavanaugh’s former suite mate Kenneth Appold, a professor of religious history at Princeton Seminary.

However, Swetnick herself admits that she doesn’t remember actually seeing Kavanaugh or Judge spike the punch. Worse, two of Swetnick’s ex-boyfriends portray her as disturbed and prone to exaggeration, and her sordid legal history casts serious doubt on her credibility. One employer sued her for allegedly falsifying her work history, and another sued her for allegedly sexually harassing colleagues and filing false sexual harassment claims.

According to a useful article in Quartz by Sarah Newman,

When one looks at a series of fabricated sexual assaults, . . . patterns immediately begin to emerge. The most striking of these is that, almost invariably, adult false accusers who persist in pursuing charges have a previous history of bizarre fabrications or criminal fraud.

By this standard, Ford and Ramirez don’t appear to fit the pattern of adult false accusers, but Julie Swetnick does. If any of the three accusers could be successfully prosecuted, it’s her. However, even in Swentick’s case, prosecutors might find it difficult to make any charges stick. Some of what she claimed has been corroborated, and the rest is sufficiently vague that it would be difficult to disprove.

Comments

  1. “Careful examination of these issues strongly suggests that while false allegations are a real problem, prosecuting false accusers isn’t the answer—at least not without overhauling the criminal justice system (and perhaps also human nature) first.”

    The first step to start “overhauling” the criminal justice system is to prosecute false accusers. Just the same as it is illegal for people to make false automobile insurance claims or take out life insurance on themself and then fake their own death to receive payment. It should also be just as heavily pursued to prosecute false rape and harassment accusers. That might motivate men and women to quit engaging in questionable or risky promiscuity and not have such reckless behavior in general that they regret. As evidenced in your article about women who were sexually active then regret it and file false rape accusations. That is the sign of immature and childish thinking, someone who doesn’t think about their actions and consequences and then later has a “tatrum” and cries foul when they don’t like the consequences of their actions.

    “The UK example should serve as an important cautionary tale. Most of the women prosecuted are charged with “perverting the course of justice,” which carries a seemingly excessive maximum sentence of life in prison.” As you noted and I take your word for it’s accuracy, the maximum penalty is not the normal or expected penalty in most false accusation cases. The maximum penalty of life in prison is there as a deterrent from people making truly heinous and grievous false accusations like violent rape, child rape or pedophila. Accusations that would most assuredly ruin someone’s personal and professional life and scar them as a social outcast for the rest of their time on this earth.

    The key to a smooth operating society is holding everyone accountable to the same standard and same consequences: politicians, law enforcement at every level, every ethnicity and every gender regardless of who you are and your “status”. Examples: Bitcoin Beyond the Bubble, and the “bail out” fiasco of taxpayer dollars being wasted by corporations for bonuses and management perks and no one held accountable for mispending money that was contractually earmarked for a specific purpose.

    I worked for 13 years with pedophiles and other adults with mental health problems that resulted is assaultive and aggressive and manipulative behavior. They all have black and white rules they absolutely must follow as detirmined by the courts and mental health professionals. With those rules I didn’t let them get away with anything. They also had many more rules that fell into a “gray” area that if they were having good behavior and following their program they could go out with a staff member in the community to shop, see a movie, go to a restaurant, go to park, bike ride, hiking, visiting national parks, etc. I primarily worked nightshift, but also worked thousands of hours getting paid overtime during the day to basically have fun and do recreational activities as noted above.

    With every resident I followed their black and white rules to the letter and it made my job a lot easier and enjoyable to spend time with them because I knew they wouldn’t try to get away with anything while I was on shift. This was even the case with residents who were notoriously manipulative and combative with most staff which caused most staff to not want to work with them. Occasionally, I saw staff try to bribe a resident with going to a fast food restaurant that the staff would pay for if the resident didn’t act out and had good behavior. Other inappropriate leniency as a bribe I saw and reported was allowing a resident with a history of theft to buy a popular video game that involved automobile theft and other criminal behavior even though it was explicitly dictated they could not have possession of or play that specific video game series. Sometimes these bribes had disasterous effects when the staff person felt the resident didn’t deserve their bribe so the resident would act out even more violently with property destruction or assault. And of course all of this had to be documented and addressed in their counseling. I never saw any occurance of staff being punished or fired for trying to bribe residents. Probably because the company had trouble keeping staff and needed every upright body they could get to watch over residents.

    With all the residents I developed a good rapport over the years of treating them fairly, being friendly but holding them absolutely accountable on their black and white rules. Occasionally a resident might act out or have a bad attitude about being held accountable. But for the most part my approach worked very well and made it possible to work 7+ years at 100 hours a week with the most challenging residents that many other staff refused to work with.

    I have learned through working in mental health and corrections that when appropriate you need to be direct and plainly assert what is on your mind. I’m not a Type A personality, or someone who likes to be in control. I’m very easy going, love helping people in various ways whether it be moving, listening to a problem or rant, or just doing something fun preferably outdoors. I have a live and let live type of attitude. I have always been more of an anti-social, introvert wallflower with few to no friends who prefers solitude and being alone versus crowds and parties.

    Another example of holding people accountable. If I am in my vehicle sitting first in line at a traffic light and other drivers are blatantly running their red light stopping other traffic from proceeding on their own green light for more then 3 seconds I slowly allow my vehicle to creep forward past the stop line with my foot on the brake and lay on the horn until said red light runners are out of the way and other traffic can proceed. It’s hilarious the shocked looks on people’s faces when they realize someone is very loudly calling them out on their red light running.

    Also if at a traffic light and the driver at the front of the line isn’t proceeding after a few seconds I give my horn a quick beep. If after a few more seconds they are still not proceeding I may give another quick beep or lay into my horn, depending on if they seem to be paying attention. After two separate quick beeps my longest horn time was about 10 continuous seconds. It appeared from behind the other driver was looking at the green light and was slowly allowing their car to move but I think they weren’t going because I was still letting my horn continue for so long. My guess is they finally gave up and accelerated and the moment they did I quit the horn and gave a wide berth and didn’t honk at them again the following couple lights because they did proceed within a few seconds of the green light, which is a reasonable amount of time to mentally register the green light and move the foot from brake to accelerator and accelerate safely. Some may consider that rude. But, the inattentive driver is the rude and inconsiderate one. (Sometimes a driver directly in front of me gives me a rude gesture thinking I am honking at them. No, I am honking at the idiot 5 cars ahead at the stoplight that is not paying attention and inconveniencing us all. I do not acknowledge said rude gesture. If it came down to it I would say to that driver, “You did nothing wrong. I’m honking at the idiot at the light not paying attention that is inconveniencing us all.”)

    I also do the same with my horn when trying proceed and encountering long lines of drivers who blatantly block intersections because they didn’t stop at the stop line on a green light when traffic is stopped on the opposite side of the intersection. I have seen many drivers blocking intersections and running red lights as an opposite reaction to someone at the stop line not paying attention and taking too long to proceed. Even though I may be perturbed by another drivers inattention I don’t want to be that jerk blocking the intersection for everyone else. Yeah the inattentive driver is a jerk, but it doesn’t help matters by me being a jerk and inconsiderate too. Even though the inattentive driver caused me to sit through another cycle of the traffic light, I broke the cycle of “the jerk bug” by not being inconsiderate myself. Someone has to be mature and choose to break the cycle otherwise we’ll all soon be jerks screaming and beating each other and not even know why.

    Here in Washington State it is legal to make a right turn at a red stoplight: 1. after coming to a complete stop AND 2. if there is no sign posted at the traffic light that says “No right turn on red”, these signs are obviously visible next to said traffic light over an intersection. The no right turn on red does not include a red arrow pointing right. Living in a populated suburban area occasionally I encounter a driver stopped at red light with their right turn signal on but are not proceeding. If I can see without a doubt there is no other traffic or pedestrian keeping them from proceeding I give my horn a quick beep. Sometimes this works and other times a driver will continue to not move or will allow their vehicle to roll forward but still unnecessarily block traffic. I’ve had it happen that even after a light has changed green and a few seconds pass, I beep my horn again and the driver seems to be looking at the light and intersection but they refuse to accelerate I guess as some sort of punishment toward me. With encouter like that I give them a wide berth in traffic or choose a different path away from them because they are likely troublesome or infantile and I don’t want to get tangled up with their drama or life problems.

    Also here in Washington State when making a left turn at a traffic light and when there is a solid round green light or flashing yellow light it is legal to proceed into the intersection to wait for oncoming traffic to clear so you can complete your left turn. There are a few intersections near where I live that do not have a green arrow for left turns. The only option is for the driver at the stop line to proceed into the intersection, wait for the long line of oncoming traffic to be stopped by their red light so that one driver can complete their left turn. This can have disasterous consequences for other drivers waiting in line on that side of an intersection when the driver at the stop line won’t proceed into the intersection and wait for oncoming traffic to be stopped by their red light. I have only been in that situation twice and gave a brief beep of my horn and slowly rolled closer to the vehicle hoping to encourage the other driver to proceed. One time it happened the driver in front of me allowed their vehicle to roll forward slightly after my horn beep. But they did not proceed into the intersection. I continued to wait knowing our green light would soon be red and it would be too late. Approximately 30 seconds later, light changed from green to red, they briefly tried to accelerate but crossing traffic was so quick on their green light that the driver in front of me realized they missed their opportunity to go. The driver in front of me had to sit through another traffic light cycle watching everyone else pull into the intersection and wait and how quick everyone at the intersection accelerated due to the long lines at each side of the intersection. When our light turned green again the driver in front of me promptly proceeded into the intersection to wait for oncoming traffic to clear and I also moved up past the stop light behind them. Oncoming traffic cleared they made their left turn and when I saw it was safe I promptly did so too.

    A driver may just be wandering aimlessly around town with nothing important to do. But other drivers likely have somewhere they need to be in a timely manner. Like work, important appointments or on a tight schedule to be somewhere like a court hearing where being late due to inattentive drivers can have disasterous consequences for that person. When driving everything else is secondary, radio, phone, day dreaming etc. When driving you are literally jeopardizing your own life and others and the privledge of driving needs to be taken more seriously. I realize some drivers are not confident, may be new to the area and learning where everything is and how the traffic flows. I don’t honk my horn easily or with wreckless abandon, just when someone is being blatantly inattentive or a jerk.

    When the police give a lawful order to “stop” or “put your hands up” comply and sort out your grievances later. Arguing, resisting, or running only makes an officer feel threatened and officers can’t read minds so they don’t know what your intent is when you don’t follow their command. Watching tv shows with police it is very common to see people “stall” or make excuses when an officer wants to handcuff the person to detain or arrest them. People try a wide variety of stalling tactics like, I need to finish my cigaratte, I have an itch, I need to use the toilet, I need to put on my socks before putting on my shoes etc etc ad nauseam. These stalling tactics are sometimes just childish and the person hoping they can delay being arrested like a child being punished. Or the stalling or attempting to go somewhere else like the restroom may be an attempt to run or get a weapon that can harm or kill an officer. Once again officers are not mind readers so they don’t know your intent even if they have dealt with you before. When I see in the news that someone of any skin color was given a lawful order by police and they resisted, ran or did something suspicious and then the officer shoots them I have no sympathy for that person, even if they were simply trying to run and the officer made a bad judgement call shooting them. Yes, the officer should be held accountable for the bad judgement call of shooting someone, even criminally liable if warranted. But society shouldn’t shed a tear for that person who got shot because they didn’t follow an officers lawful order. This goes back to the personal responsibility for your own actions.

    If I am stopped by police while driving I use my turn signal to pull over, come to a complete safe stop, roll down the driver and front passenger windows pressing the power window buttons. (If manual windows roll down the driver side only so the officer doesn’t see you leaning over doing who knows what. Hiding drugs? Getting a weapon? If officer approaches on the passenger side slowly lean over and roll down the window, then place your hands back at the top of the steering wheel.) Turn off headlights and turn off the vehicle to show that I am not going to try to drive away. Turn on the interior dome light and sit still with both hands at the top of the steering wheel so the officer can easily see inside my vehicle when they approach and easily see my hands. I keep my insurance & vehicle registration in a sun visor pouch over the steering wheel so the officer can easily see me getting the paperwork out after I have asked to do so. I keep my wallet with my drivers license in my left leg cargo pocket, ask the officer if I can take out my wallet and where it is located. I pull out the wallet slowly so the officer can see it is obviously a brown wallet coming out of my pocket.

    The point of sharing these things about driving and police encounters is not to complain or rant. It’s to make the point that everyone needs to be more out spoken in all aspects of their life to hold each other accountable when they see bad or wreckless behavior, especially when it is jeopardizing the life and safety of other people.

    Quoting the Golden Rule, “Treat others as you want to be treated.” used to be adequate when society as a whole was more considerate of other people in general. Now, some people treat others they know badly and don’t care if those people reciprocate the same attitude back to them. This creates a vicious cycle. Like I said before, someone has to be mature enough to break that cycle. For people that are rude, boorish and don’t care how others treat them it may be better to say, “What goes around comes around.” or “Give sh*t, you get sh*t back.” or “Garbage in, garbage out.” or more simply “Don’t be a jerk if you don’t want to be treated like one.”

    Changing society as a whole starts with:
    1. Each person being honest with themself and others.
    2. Treat other people fairly.
    3. When reasonable give people the benefit of the doubt.
    4. When you’ve been slighted by someone that hasn’t endangered your life or safety let the anger and annoyance go, like water off of a ducks back.
    5. Be hospitable and help each other when able and within reason. Not taking advantage of a person or assistance program when you don’t need it after they have helped you.

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